There were a lot of guilty verdicts read out last week at the close of the Ahmaud Arbery trial, something that likely came as a shock to very few people. After all, footage showed Travis McMichael killing the Georgia man after he and two others tracked Arbery down in their trucks and blocked him from escaping. But one part may have been confusing: How did three men rack up a collective 12 murder convictions after McMichael shot one person?
For that, we can look primarily to the felony murder rule, which allows the government to charge you with murder while subsequently acknowledging you didn't actually kill anyone, so long as the killing happened while you were committing a related felony. (McMichael was also found guilty of an additional count of malice murder.)
His father, Gregory McMichael, and friend, William "Roddie" Bryan, were convicted on a slew of charges related to their reprehensible conduct that day: aggravated assault, false imprisonment, and criminal attempt to commit a felony. They were thus found guilty of felony murder associated with each one of those tangential convictions.
The vast majority of the country supported that verdict. That isn't surprising; Arbery's death is—at least in my view—an open and shut moral case. That the murder was undergirded by racism is not speculative. It can be found in the younger McMichael's own words: Bryan, who filmed the encounter, told investigators that, after shooting Arbery dead, McMichael called him a "fucking nigger."
It would thus be tempting now to associate the words "felony murder" with fairness and justice. But high-profile trials are a lousy way of assessing the criminal justice system. It's understandable some would assume that individual proceedings are microcosms for the broader machine. That's not true. The Arbery case is no exception.
The felony murder rule "divorces intent from consequence," says Lara Bazelon, a professor of law at the University of San Francisco. "The concept is that, well, if you went along for the underlying felony, if you went along for the less serious act…then you're just as guilty as [the murderer], even if you didn't know that your co-defendant was armed, and even if you had no intent to kill yourself."
That scenario is not a hypothetical. In May 2020, not long before Arbery's convicted murderers were indicted, Jenna Holm was arrested on a manslaughter charge in Idaho, accused of killing a police officer after he arrived to respond to her apparent mental health crisis. But it wasn't Holm who killed Bonneville County Sheriff's Deputy Wyatt Maser—something the state conceded. It was another cop, who struck Maser in his vehicle when he drove onto the scene.
While an internal investigation revealed the officers disregarded safety procedures that night, the police eschewed introspection and set their sights on Holm, charging her with an "unlawful act" and tacking a manslaughter charge on top. (A judge recently struck it down, but only after Holm sat in jail for 16 months pre-trial.)
There are many more such stories. In December 2018, 16-year-old Masonique Saunders was charged with the felony murder of her boyfriend, who a police officer shot during the commission of a robbery. Because she allegedly helped plan that burglary, Ohio said the teen effectively killed her own partner. But perhaps the most iconic anecdote associated with the felony murder rule is the unfortunate story of Ryan Holle, who was sentenced to life in prison after he lent his car to some friends. Those friends then used it to commit a crime—also a burglary—which went horribly awry after one of the men found a firearm in the house they were robbing and used it to kill 18-year-old Jessica Snyder.
Holle was a mile and a half away from that scene, but he was treated no differently than Charles Miller, Jr., who saw that gun and spontaneously murdered Snyder. "Felony murder says you are just as liable, you are just as guilty as the person who pulled the trigger," notes Bazelon. In 2015, Holle's sentence was commuted to 25 years in prison; he will not be released until 2024.
Indeed, the felony murder rule has long been a popular target among people interested in criminal justice reform. Yet those principles are decidedly more difficult to apply when the defendants are as unsympathetic as those in the Arbery case, which is why someone like Bazelon may find herself on a smaller island than usual.
"If you believe in your heart that felony murder is wrong because it overcriminalizes, and you're a believer that you should be guilty of what you intend to do—no more no less—then you have to stick with that," she says, "even when the people who are convicted are people that you dislike, and in your heart you feel, you know what, they deserve it."
Bazelon admits that she did feel that way toward the two defendants who didn't pull the trigger—that she had to resist the gut urge to celebrate the ruling as just. It's hard to blame her. But ultimately taking issue with Gregory McMichael and Bryan's collective seven murder convictions is not synonymous with hoping they'd walk free.
Consider Bryan's involvement: The McMichaels' neighbor pursued Arbery in a separate vehicle, admittedly using his truck to cut off Arbery's route of escape and allegedly hitting him in the process. For the latter action alone, he was convicted of aggravated assault, which, under Georgia law, carries a penalty of up to 20 years in prison. And that's to say nothing of his other convictions.
His behavior was "incredibly reckless and dangerous," Bazelon says. "But there's no evidence that he intended to murder him."
From a purely legal perspective, that Georgia jury still got it right. "It's a correct use of Georgia felony murder law. This is exactly what the law was designed to do," she tells me. "And it makes me uncomfortable….If you are a principled thinker and you are a professor of law, and you have moral principles and beliefs, then you have to apply them to everybody." For that to include the Holms and the Saunderses and the Holles of the world, that necessarily also has to include a McMichael and a Bryan—no matter how unsavory it may be.
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